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Rai Saheb Rekchand Mohota Spinning and Weaving Mills (Private), Ltd. Vs. Labour Court, Nagpur and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1127 of 1965
Judge
Reported in[1967(15)FLR322]; (1968)ILLJ610Bom; 1967MhLJ864
ActsIndustrial Disputes Act, 1947 - Sections 2, 25A, 25B, 25C, 25D, 25E, 25-O and 33C(2)
AppellantRai Saheb Rekchand Mohota Spinning and Weaving Mills (Private), Ltd.
RespondentLabour Court, Nagpur and ors.
Excerpt:
.....industrial disputes act, 1947 - appellant challenged against order of labour court to pay lay-off compensation to workmen - loss of employment for two hours not condition precedent for lay-off - loss of employment for period of half an hour amount to lay-off - circumstance which had resulted into lay-off within meaning of section 2 (kkk) - section 25e lays down circumstances in which workman would disentitle himself from claiming compensation for lay-off - section 25e not come into operation under facts of case - no reason to interfere with order of labour court - respondent entitled to get lay-off compensation - appeal dismissed. - - 25c to 25e with regard to lay-off were applicable to the petitioner in case the other requisite conditions were satisfied. 2(kkk) thus :lay-off'..........hours from 12-30 a.m. to 7 a.m. this change remained in force during that period and the original working hours were resumed from 14 august, 1964. the respondents-workmen had lost their wages and proportionate allowances for the period of half an hour by which the working hours were out down during this period. excluding one day on which the respondents-workmen worked for the full period of the shift because it was a day prior to the holiday and excluding one weekly holiday, the total loss of work of each of the respondents was three and a half hours. 3. each of the respondents applied to the labour court under s. 33c(2) of the industrial disputes act, 1947, for lay-off compensation in respect of three and a half hours in all for that period. the petitioner mill contested the claim of.....
Judgment:

L. M. Paranjpe, J.

1. In this petition under Arts. 226 and 227 of the Constitution, the petitioner, which is a limited company, has prayed for a writ of certiorari to quash the order of the labour court whereby it was directed to pay lay-off compensation to the respondent's workmen.

2. The petitioner-company owns and runs a textile mill at Hinganghat, district Wardha. Respondent 2 to 99 were employees of the petitioner-mill and were working in the third shift of the mill during the relevant period. The Maharashtra State Electricity Board intimated to the mill its inability to supply electric current between 8 and 9 p.m. during a certain period and requested the petitioner mill to extent the half an hour's recess of the second shift by making it for one hour from 8 p.m. to 9 p.m. The petitioner had, therefore, to extend the second shift from midnight up to 12-30 a.m. and to shift the starting of the third shift from midnight to 12-30 a.m. for the period from 5 to 13 August, 1964. Accordingly, a notice was put up to intimate the respondents that the third shift would only be for six hours instead of six and a half hours from 12-30 a.m. to 7 a.m. This change remained in force during that period and the original working hours were resumed from 14 August, 1964. The respondents-workmen had lost their wages and proportionate allowances for the period of half an hour by which the working hours were out down during this period. Excluding one day on which the respondents-workmen worked for the full period of the shift because it was a day prior to the holiday and excluding one weekly holiday, the total loss of work of each of the respondents was three and a half hours.

3. Each of the respondents applied to the labour court under S. 33C(2) of the industrial disputes Act, 1947, for lay-off compensation in respect of three and a half hours in all for that period. The petitioner mill contested the claim of the respondents on several grounds. The principal contention of the petitioner was that this closure of work for half an hour on those seven days did not and could not amount to a 'lay-off' within the meaning of the Industrial Disputes Act, 1947, and no compensation could be claimed by or awarded to the respondents with respect to that closure. The learned Judge of the labour court overruled these contentious of the petitioner and granted lay-off compensation for this period of three and a half hours, as prayed, because there was no dispute with regard to the quantum. The correctness and legality of that order are the subject-matter of challenge in this writ petition.

4. In order to appreciate the submissions made on behalf of the petitioner, it would be necessary to refer to certain provisions of Chap. V-A of the Industrial Disputes Act. With regard to lay-off and the definition of lay-off as given in S. 2(kkk). We are referring to those provisions as they stood before the amendment of that Act in 1964. Section 25A mentioned certain establishments to which the provisions of Ss. 25C to 25E were not applicable and admittedly the petitioner was not one of those establishments. It was not disputed that the provisions of Ss. 25C to 25E with regard to lay-off were applicable to the petitioner in case the other requisite conditions were satisfied. The respondents-workmen had completed more than one year of continuous service as defined in S. 25B. Selection 25C, which gives the right of compensation to laid-off workmen, was in the following words :

'25C. (1) Whenever a workman (other then a badli workman or a casual workman) whose name is borne on the muster-rolls of an industrial establishment and who has completed not less than one year of continuous service under an employer is laid off, he shall be paid by the employer for all days during which he is so laid off, except for such weekly holidays as may intervene, compensation which shall be equal to fifty per cent of the total of the basic wages and dearness allowance that would have been payable to him had he not been so laid off :'

[We are not quoting the proviso and the explanation which are not relevant].

5. Section 25D enjoins upon the employer to maintain a muster-roll of workmen even for the period of lay-off and to provide for the making of entries therein by workmen who may present themselves for work at the establishment at the appointed time during normal working hours. Section 25E lays down circumstance in which a workman would disentitle himself from claiming compensation for lay-off. That section would not come into operation upon the facts of this case.'Lay-off' is defined in S. 2(kkk) thus :

''Lay-off' (with its grammatical variations and cognate expressions) means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the breakdown of machinery of for any other reason to give employment to a workman whose name is borne on the muster-rolls of his industrial establishment and who has not been retrenched.

Explanation. - Every workman whose name is borne on the muster-rolls of the industrial establishment and who presents himself for work at the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself shall be deemed to have been laid off for that day within the meaning of this clause :

Provided that if the workman, instead of being given employment at the commencement of any shift for any day, is asked to present himself for the purpose during the second half of the shift for the day and is given employment, then he shall be deemed to have been laid off only for one half of that day :

Provided further that if he is not given any such employment even after so presenting himself, he shall not be deemed to have been laid off for the second half of the shift for the day and shall be entitled to full basic wages and dearness allowance for that part of the day.'

6. The admitted facts of the present case show that the respondents, who were in continuous service for more than one year and had not been retrenched, 'were not given employment for half an hour on the seven days in question because of the shortage of electric power. Consequently, that loss of employment for the period of half an hour should come within the definition of 'lay-off' which we have quoted above. The contention of Sri Bobde, advocate for the petitioner, however, was that this definition of lay-off as given in S. 2(kkk) was controlled and modified by the explanation, and reading the definition with the explanation would show that a lay-off, which would entitle a workman for compensation within the meaning of S. 25C, cannot be for less than one full day or half day. According to him, the closure of work for a period short of a full day or half day was not a lay-off for which compensation was payable and he was drawing that inference from the explanation which had indicated the lay-off to be either for the full day or for half day.

7. In order to support his contention that the explanation to the definition of 'lay-off' under S. 2(kkk) controls, limits and modifies that definition by indicating that the lay-off must be for half day or a full day. Sri Bobde was relying on a decision of this Court and two decisions of the Supreme Court where the scope of the explanation to Art. 236 of the Constitution of India as it stood before it was deleted by the Constitution (Sixth Amendment) Act, 1956, was explained. On going through these decisions, we do not think it necessary to discuss them at any length for the simple reason that they do not support the point sought to be made out by Sri Bobde. In United Motors (India), Ltd. v. State of Bombay : (1953)55BOMLR246 Chief Justice Chagla had observed (p. 259) :

'... An explanation (in a section or an article of state or Constitution) is not a proviso. It does not carve out of the section something which the section has provided and deal with that part which is carved out. It is not be function or purpose of an explanation to extent the scope of the section itself or to restrict its operation. An explanation ordinarily is intended to apply to the whole ambit of the section and to throw light on the construction of the words used by the legislature.'

8. These observations run counter to the contention of Sri Bobde that an explanation restricts or modifies or controls the definition. He did not show any authority where a different view was taken on this point. The same case was taken before the Supreme Court in State of Bombay v. United Motors (India), Ltd. : [1953]4SCR1069 (vide supra) and there also the correctness of the aforesaid observations of this Court was not questioned. It was urged before the Supreme Court by the Advocate-General of Bombay that the explanation, if understood in the way it was being urged by the other side, would operate not as an explanation but as an exception or a proviso to that clause. Their lordships made the following observations in connexion with that argument (p. 542) :

'... It may be that the description of a provision cannot be decisive of its true meaning or interpretation which must depend on the words used therein, but, when two interpretations are sought to be put upon a provision, that which fits the description which the legislature has chosen to apply to it, is according to sound canons of construction, to be adopted provided, of course, it is consistent with the language employed, in preference to the one which attributes to the provision a different effect from what it would have according to its description by the legislature.'

9. These observations do not support the contention of Sri Bobde that an explanation to a section, qua explanation, has the effect of modifying or controlling the definition in the section. Sri Bobde does not want to urge that the explanation as mentioned in the section amounted to or should be treated as a proviso to the section. Even Sri Bobde did not dispute that this and other decisions which he was citing in this connexion would not be of relevance for deciding the scope of the definition of 'lay-off' in S. 2(kkk) and the explanation thereto. The matter will have to be decided on the wordings of the relevant section only.

10. There was nothing in the definition of 'lay-off' in S. 2(kkk), which required the stoppage of work under the conditions specified in that section to be for the minimum period of a half day or a full day. The definition was general and would apply when an employer did not or could not, because of the circumstances specified in the section, give employment to a workman whose name was on the muster-rolls and who was in continuous service for one year and who had not been retrenched. Sri Bobde's contention was that the requirements of the three circumstances mentioned in the explanation should be read into the parent definition, but we see no warrant or authority for doing it. In our opinion the three parts of the explanation contain deeming provisions. The first one says that if a worker who had presented himself for work at the commencement was not given employment within two hours of his presenting himself, he will be deemed to have been laid off for that entire day. The second part of the explanation provides that if the workman instead of being given employment at the commencement of the shift, was asked to present himself for work during the second half of the shift and was given employment in the second half, he shall be deemed to have been laid off only for the first half of the day. The third part of the explanation provides that if a workman was not given work even after presenting himself at the commencement of the second half of the shift, he shall be entitled to full basic wages and dearness allowance for that second half. Reading these three parts of the explanation in the definition would virtually amount to negativing the general provisions in that definition by restricting a lay-off only to the circumstances mentioned in the explanation. That would obviously not be permissible by the rules of interpretation of states. There was nothing in the definition of lay-off as given in S. 2(kkk) which prescribed the presentation of a workman for work during the first two hours or his coming for work again at the beginning of the second part of the shift as a condition precedent of lay-off. We cannot, therefore, persuade ourselves to accept the contention of Sri Bobde that we should read in S. 2(kkk) these conditions present for making the definition of lay-off applicable.

11. A perusal of the definition, together with the explanation, clearly shows that the definition lays down the circumstances in which a lay-off comes about but without limiting it to any particular period of time. The explanation contains three deeming provisions with regard to the mode of calculations of the period of lay-off. These deeming provisions would either be independent substantive provisions or would be by way of raising a presumption, and if we may say so, a conclusive presumption with regard to the period for which the lay-off is supposed to be effective. This explanation has nothing to do with 'the quality of lay-off' as Sri Bobde was trying to urge. Without affecting or in any manner qualifying the circumstances in which a lay-off comes about under the main definition, the explanation purports to raise qualitative presumptions with regard to the extent of that time during which the lay-off has to be deemed to be effective. In either view, the contention of Sri Bobde that the explanation modifies or controls the main definition cannot hold water.

12. Sri Bobde referred us to R. B. Bansilal Abirchand Mills v. Labour Court [(1965) Special Civil Application No. 84 of 1963, decided by Kotval and Wagle, JJ., on 2 February, 1965 (Unrep.)] in order to contend that the explanation cannot be treated as a substantive or independent provision. In that case, the learned Labour Judge had held that there were two categories or lay-off contemplated by the entire definition, firstly the lay-off defined in the parent definition, and secondly the fictional lay-off contemplated by the explanation, and the Division Bench had expressed their inability to share that view. We do not see how that decision was contrary to our view that the explanation may be a substantive provision with regard to the quantum of lay-off. We are not meaning or intending to say that there were two categories of lay-off, one in the main definition, and the other in the explanation, as was done by the learned Labour Judge in that case. The category of lay-off is the same, and the main definition purports to state the circumstances in which the lay-off comes about, and the explanation lays down deeming provisions in certain circumstances with regard to the quantum and period for which that same lay-off is operative. Our view that the explanation may be by way of a substantive provision with regard to the quantum of the period of lay-off would not go counter to the view of the Division Bench in the case sited by Sri Bobde. That decision would be no impediment in our taking this view. Even if the explanation were not to be treated as a substantive provision and were to be treated merely as an explanation to the main definition, we do not see how that would make any difference. As adumbrated, the definition has not stated the extent of the period of lay-off as it was not at all necessary to be stated therein. Apart from the deeming provisions in the explanation, Sri Bobde did not and could not show us anything in the definition which would restrict a lay-off to a period either of a full day or a half day, or a period which is at least more than two hours. Merely because the explanation makes some deeming provisions with regard to treating the lay-off as being effective for a full day or a half day, it cannot be said that the law did not contemplate a lay-off for less than a half day or for a period short of two hours.

13. A perusal of the definition in S. 2(kkk) would show that a lay-off for a period of less than two hours was not ruled out. Section 25D with regard to the right of a workman laid off for compensation was relied on by Sri Bobde to urge that it referred only to a day and, therefore, the lay-off cannot be for any period short of a day. That submission goes counter to his argument that the lay-off could be for a half day under the latter part of the explanation. Section 25C has no doubt made a reference to 'all days' but that expression is not used in the context of the entire period of lay-off. The expression used in that section is 'he shall be paid by the employer for all days during which he is so laid off.' That expression would necessarily indicate that the lay-off could be for less than a day or even a half day. If that were not the position, the expression would have been 'he shall be paid by the employer for all the days of lay-off' and not 'all days during which he is so laid off.' If the intention of the Legislature was to limit the lay-off to a period of full day or half day, there was nothing to prevent it from saying so in S. 2(kkk). The contention that the lay-off must be for a full day would stand repelled by the latter part of the explanation under which the lay-off can be for a half day.

14. Referring to the first part of the explanation, Sri Bobde was submitting that there could not possibly be a lay-off unless the workman, who has presented himself for work at the appointed time, has been kept out of work for two hours or more. This part of the explanation has reference to the period of two hours not because it was a condition precedent for the existence of a lay-off but in order to enable a worker to go away after stopping for two hours and then to claim a lay-off for the whole day. That provision of two hours was only made so as not to compel or require a worker to remain idle in the premises for the whole day, even through it is known that no work was given to him for the first two hours, with likelihood of his not getting any work during the rest of the day. The provision of two hours was inserted to enable the deeming provision to come into operation, so that this inability to give work for two hours would result in a lay-off for the full day. Not giving of work for two hours is not and cannot be a condition precedent for a lay-off coming into existence, because it does not find place in S. 2(kkk).

15. On finding it difficult to get over this position, the contention of Sri Bobde was that in case a lay-off for a period short of two hours is allowed, many workmen would harass the employer by claiming lay-off compensation even for short periods of one to five minutes. Ordinarily, a reasonable or a rational workman would not harass the employer in that manner for an almost notional stoppage of work for a few minutes. Sri Bobde was however ignoring the logical consequences of his submission that the lay-off should be limited to a minimum period of two hours. If that were done, the greater likelihood was that several employers would not give work to the workmen till almost the period of two hours is over and thus deprive the workmen of their wages and allowances for the work which they would otherwise have done during that period of little less than two hours.

16. We are quite that this limitation of two hours does not come into picture at all and if all other conditions are satisfied, a lay-off would come into operation and would enable the worker to get a proportionate compensation for that period of lay-off. We have already pointed out that apart from satisfying the requirements of S. 2(kkk), the workman claiming a lay-off compensation would also have to satisfy the requirements of S. 25E. According to that section, he would disentitle himself from claiming compensation even if there has been a lay-off within the meaning of S. 2(kkk) if he refuses to accept an alternative employment falling within Clause (1), or if he does not present himself for work at the establishment at the appointed time, or if such laying off is due to a strike or slowing down of production on the part of workmen in another part of the establishment. Consequently, Sri Bobde was not right in saying that a premium would be put on the right of workmen to compensation without there being any reservations to that right. It is unfortunate that work could not be given to the respondents due to failure of power supply, and that was exactly the circumstance which had resulted into a lay-off within the meaning of S. 2(kkk). Since the employer himself was not responsible for creating that condition of lay-off, the workman also was not entitled to get his full salary but was entitled to get only lay-off compensation which is much less than his normal wages.

17. No satisfactory reason or ground was shown by Sri Bobde for taking a view different from the one taken by the learned Judge of the labour court. In our opinion, such lay-off compensation as claimed by the workmen was rightly granted to them, and there is no scope or reason for interfering with that order. The petition is dismissed with costs. There will be only one set of costs for the respondents. Rule is discharged.


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